A Fort Smith orthodontist sued the Arkansas State Board of Dental Examiners in federal court Tuesday, saying the board's refusal to let him offer low-cost teeth-cleaning services to the poor is unconstitutional.
"Arkansas needs more access to dental care, not less," Matt Miller, lead attorney for the Institute for Justice, said in a news release announcing the lawsuit. The public-interest law firm's Texas chapter has filed in Little Rock on behalf of Dr. Benjamin Burris, an orthodontist who has 11 offices in Arkansas, and Dr. Elizabeth Gohl of Fayetteville, who practices in Burris' Jonesboro office.
"Arkansas flat-out bans licensed dental specialists, like orthodontists, from doing even simple dental work outside of their specialty," the law firm complains, citing sections of the Arkansas Dental Practice Act, also known as Arkansas Code Annotated 17-82-305.
The board cited the statute in admonishing Burris last year that it was illegal for him to offer low-cost teeth cleanings at his Jonesboro office, and threatening to revoke both his dental license and his orthodontic license if he didn't stop offering the services -- which cost $99 for adults and $69 for children -- and allowed adults to sign up for two cleanings a year on a no-interest payment plan of $16 per month.
The board's attorney, Kevin O'Dwyer of Little Rock, acknowledged Tuesday that the board told Burris that he must practice dentistry within the confines of the statute, which prohibits dental specialists from providing routine dental work except in emergencies. O'Dwyer said the licensing board was simply doing its job, which is to ensure that licensed dentists follow state laws regulating the practice of dentistry.
O'Dwyer said the law in question has been on the books since the 1950s and that Burris is the first dentist to challenge it, as well as the first dentist he has ever heard complain about it. O'Dwyer said he doesn't know the exact reasons behind the law except for a concern about the length of time a specialist has been away from the regular practice of dentistry and perhaps the type of tools a specialist, as opposed to a regular dentist, would have on hand.
Asked if the board believes the law should be changed, O'Dwyer said: "Board members don't get involved in amending laws."
According to the lawsuit, which was assigned to Chief U.S. District Judge Brian Miller, the low-cost cleanings that Burris began offering in the summer of 2013 were performed by licensed dental hygienists under his supervision and that of other orthodontists in his office.
Burris owns two companies that operate 11 dental offices across the state. The offices in Jonesboro, Paragould, Blytheville, Forrest City and West Memphis are called "Braces by Burris." The others -- in Bentonville, Fayetteville, Van Buren, Siloam Springs, Fort Smith and Clarksville -- are called "Arkansas Braces."
He has about 15,000 active patients, 85 percent of whom are children, and employs about 100 people, including other orthodontists such as Gohl, as well as licensed dental hygienists, dental assistants and office staff, according to the suit.
In 2008, it says, he established the Smile for a Lifetime Foundation, which provides free orthodontics to children from low-income families who cannot afford braces. The foundation, according to the suit, has more than 150 chapters across the United States and Canada, and has given away about $20 million in free braces since its inception.
The lawsuit says the low-cost teeth cleanings were "a continuation of his mission to expand access to dental care to low-income individuals." It says he started offering the cleanings only in his Jonesboro office, then began expanding them to his offices in Blytheville, Forrest City, Paragould and West Memphis, before agreeing to stop in response to the board's admonishment, to save his practice.
Gohl, the lawsuit states, would participate in the low-cost cleaning program as well as free, dental services programs, "but for her fear that the Dental Board will threaten to revoke" her dental and orthodontic licenses if she does.
The lawsuit noted orthodontists are fully licensed dentists who must complete all the same requirements as regular dentists as well as a specialty dental program that, in the case of Burris and Gohl, consisted of a three-year residency in orthodontics.
In threatening to revoke the dentists' licenses, the board's actions "arbitrarily deprive Dr. Burris and Dr. Gohl of their right to pursue the occupation of their choice, in violation of the Equal Protection, Due Process, and Privileges or Immunities clause" of the 14th Amendment, the lawsuit asserts. It seeks a declaratory judgment finding the offending sections of the state statute unconstitutional, and a permanent injunction forbidding future enforcement of the sections, as well as payment of attorneys fees and litigation expenses.
The lawsuit doesn't seek any monetary damages.
The defendants are the board's executive director, Donna Cobb; board President Dr. George Martin of Fayetteville; board Vice President Dr. Robert Keene of Fayetteville; Dr. David Bell of Arkadelphia; Dr. Timothy Chase of Monticello; Dr. Robert Carter of Batesville; Jennifer Lamb of Little Rock; and Donna White of Murfreesboro.
Metro on 05/28/2014